Frankel v. Derwinski

1 Vet. App. 23, 1990 U.S. Vet. App. LEXIS 10, 1990 WL 303133
CourtUnited States Court of Appeals for Veterans Claims
DecidedAugust 17, 1990
DocketNo. 89-167
StatusPublished
Cited by365 cases

This text of 1 Vet. App. 23 (Frankel v. Derwinski) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Frankel v. Derwinski, 1 Vet. App. 23, 1990 U.S. Vet. App. LEXIS 10, 1990 WL 303133 (Cal. 1990).

Opinion

NEBEKER, Chief Judge:

Appellant, Cleda V. Frankel, applied for death pension benefits as the surviving spouse of the veteran David Frankel. The Board of Veterans’ Appeals (BVA) denied appellant’s claim, finding that she and the veteran were divorced prior to his death. On appeal, appellant argues that the civil divorce did not dissolve the religious marriage and that she is therefore entitled to death pension benefits as the spouse of a veteran. We disagree and affirm the decision of the BVA.

Although this appeal has been briefed, it would have been perhaps more appropriate, given the clarity of the relevant statute, for the Secretary to have moved for summary affirmance. In order to provide guidance to present and future litigants, we take this opportunity to announce the criteria which this Court will use in summarily ruling on decisions of the BVA in future cases.

Review of the present case discloses that there are no disputed material facts. The Frankels were married in a civil ceremony on March 13,1949, in Oakland, Maryland. Later, on October 29, 1949, the couple married in a religious ceremony. On August 19, 1985, appellant was granted a decree totally dissolving the marriage in the Circuit Court of Rockingham County, Virginia, a court of competent jurisdiction. The veteran died on May 20, 1988.

The issue before the Court is the legal significance, if any, of the religious marriage ceremony in determining eligibility to death pension benefits as the surviving spouse of a veteran. The provisions of 38 U.S.C. § 103(c) (Supp. V 1987) are disposi-tive:

In determining whether or not a person is or was the spouse of a veteran, their marriage shall be proven as valid for purposes of all laws administered by the [Department of Veterans Affairs] according to the law of the place where the parties resided at the time of the marriage or the law of the place where the parties resided when the right to benefits accrued.

[25]*25Appellant’s right to benefits, if any, accrued at the veteran’s death in May 1988. At that time, she and the veteran were divorced. The BVA correctly determined appellant was ineligible for death pension benefits as the surviving spouse of a veteran. We hold as a matter of law that the religious ceremony is irrelevant to the benefits sought here.

As with most of the appellate courts in this country, we find it necessary to articulate, within the limits of our review and dispositional authority, when summary disposition is appropriate. To do so, it is first necessary to outline that authority.

The primary purpose for creating the U.S. Court of Veterans Appeals was to provide for judicial review of BVA decisions. The Court’s enabling legislation provides, “The Court of Veterans Appeals shall have exclusive jurisdiction to review decisions of the Board of Veterans’ Appeals .... The court shall have power to affirm, modify, or reverse a decision of the Board or to remand the matter as appropriate.” 38 U.S.C.A. § 4052 (West Supp. 1990). “The Court may hear cases by judges sitting alone or in panels,” 38 U.S.C.A. § 4054(b) (West Supp.1990), or en banc. 38 U.S.C.A. § 4067(d)(2) (West Supp. 1990).

The standard of review to be employed by the Court when reviewing BVA decisions is determined by whether the issues presented on appeal were questions of law or of fact. The Court’s enabling legislation provides:

In any action brought under this chapter, the Court of Veterans Appeals, to the extent necessary to its decision and when presented, shall—
(1) decide all relevant questions of law, interpret constitutional, statutory, and regulatory provisions, and determine the meaning or applicability of the terms of an action of the [Secretary];
(2) compel action of the [Secretary] unlawfully withheld or unreasonably delayed;
(3) hold unlawful and set aside decisions, findings (other than those described in clause (4) of this subsection), conclusion, rules and regulations issued or adopted by the [Secretary), the Board of Veterans’ Appeals, or the Chairman of the Board found to be—
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or
(D) without observance of procedure required by law; and
(4)in the case of a finding of material fact made in reaching a decision in a case before the [Department of Veterans Affairs] with respect to benefits under law administered by the [Department of Veterans Affairs], hold unlawful and set aside such finding if the finding is clearly erroneous.

38 U.S.C.A. § 4061(a) (West Supp.1990).

If, upon consideration of the record, the Court cannot say the factual findings of the BVA are “clearly erroneous,” see 38 U.S.C.A. § 4061(a)(4); Anderson v. City of Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); Danville Plywood Corp. v. United States, 899 F.2d 3 (Fed.Cir.1990); or that there is an error of law, the Court is obligated to affirm the BVA’s decision. Due regard must be given by the Court to the rule of prejudicial error. 38 U.S.C.A. § 4061(b).

Whether a decision warrants an opinion of the Court or whether it should be summarily decided by order is, to a great extent, a function of its precedential value. The Court has surveyed the standards for summary disposition found in internal operating procedures and local rules for other federal appellate courts. We have chosen to adopt the following standard for summarily acting on BVA decisions appealed to the Court: If, after due consideration, the Court determines that the case on appeal is of relative simplicity and

1. does not establish a new rule of law;
[26]*262. does not alter, modify, criticize, or clarify an existing rule of law;
3. does not apply an established rule of law to a novel fact situation;
4. does not constitute the only recent, binding precedent on a particular point of law within the power of the Court to decide;
5. does not involve a legal issue of continuing public interest; and
6. the outcome is not reasonably debatable,

the decision of the BVA may be affirmed or reversed on motion for summary disposition by either party, or on the Court’s own initiative, by an order and judgment without opinion.

By statute, this Court may sit by single judge, in panels of three or en banc, 38 U.S.C.A. §§ 4054(b), 4067(d)(2). Single judges will consider and decide cases identified for summary consideration and decision.

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Cite This Page — Counsel Stack

Bluebook (online)
1 Vet. App. 23, 1990 U.S. Vet. App. LEXIS 10, 1990 WL 303133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frankel-v-derwinski-cavc-1990.